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Lamb McErlane PC partner James “Jim” Sargent was quoted in this Law.com/Legal Intelligencer article in regards to King’s Bench power.

“It’s a unique power. It’s very discretionary,” Lamb McErlane appellate attorney James Sargent said. “The justices have always been very cautious not to overuse it.”

Written by: Max Mitchell | April 27, 2018

Attorneys, court watchers and former justices who spoke with The Legal agreed that the King’s Bench power is reserved for very select and significant cases that must be handled extremely quickly. And at least one former member of the high court did not think the latest use of the powers met that high threshold.

Over the past two years, the state Supreme Court has denied 57 King’s Bench petitions and granted only two, according to a review of rulings available through the Administrative Offices of Pennsylvania Courts.

Among those who have been denied in a request for the Supreme Court to exercise its plenary jurisdiction—which allows the high court to instantly take up any case in any Pennsylvania court—was Philadelphia Mayor Jim Kenney’s City Hall, which wanted the high court to make an expedited ruling on the legality of its high-profile tax on sweetened beverages. The high court also rejected former state Attorney General Kathleen Kane‘s petition for King’s Bench review of her case.

In January 2017, the justices did grant a King’s Bench request lodged by leading members of the Pennsylvania Senate, including Sen. Joseph Scarnati, R-Jefferson, and Sen. Jay Costa, D-Allegheny, who had sought to delay the impact of the court’s decision nixing local slot machine taxes while the General Assembly worked out a way to fix the law.

Now, the only other King’s Bench petition that has been successful over the past two years was the petition filed last month by embattled rapper Meek Mill. On Tuesday, the court, acting under its King’s Bench jurisdiction, granted Mill’s request to be let out on bail, and ordered that the trial judge expedite the case, which has come under national scrutiny as an example of the need for criminal justice reforms.

Attorneys, court watchers and former justices who spoke with The Legal agreed that the King’s Bench power, imported from England when the Pennsylvania courts were established in the 17th century, is reserved for very select and significant cases that must be handled extremely quickly. And at least one former member of the high court did not think the latest use of the powers met that high threshold.

“If some judge down below is really messing up, you can appeal through the system,” former Chief Justice Ronald Castille said, adding that the court should not take publicity of a case into consideration when deciding whether to exercise its King’s Bench powers. “We want records. We want people to go through the system, unless it’s really important. I don’t think the Meek Mill case was one.”

The Pennsylvania justices issued their ruling in a per curiam order Tuesday, which noted that Justice Kevin Dougherty did not participate, but did not show that any of the six remaining justices dissented. Aside from noting that the Philadelphia District Attorney’s Office indicated there are credibility problems with a “critical witness” warranting a new trial for Mill, whose real name is Robert Williams, and said they did not oppose Williams being released on immediate bail, the justices offered little insight into their decision.

A closer look at the Williams’ request, however, shows that the rapper’s legal team focused their arguments on how the case might cast a shadow on the reputation of Pennsylvania courts.

“The concern is particularly acute here. Given Mr. Williams’ celebrity stature, the commonwealth’s judicial system now is subject to heightened attention,” the petition, filed by Reed Smith attorney Kim Watterson, said. “Mr. Williams deserved better—as do all defendants in his situation. The commonwealth’s judicial system generally does do better—and this court can demand that it always do better by granting relief in this case.”

Prosecutor’s response, filed April 5, said prosecutors did not oppose Williams’ request to be released on bail, but opposed all other requests.

One of the purposes of King’s Bench jurisdiction is that it allows the Supreme Court to circumvent the normal appellate procedures, which can often take more than a year.

“It’s a unique power. It’s very discretionary,” Lamb McErlane appellate attorney James Sargent said. “The justices have always been very cautious not to overuse it.”

Issues involving deadlines for implementing legislation, the First Amendment, or fast-approaching court proceedings with statewide importance are topics the high court usually reserves its King’s Bench powers for. Court watchers agreed it is even more rare to see the court use its the power to wade into criminal matters, especially since there are often other appellate avenues, such as filing a writ of habeas corpus.

Former Supreme Court Justice Russell Nigro said the prosecutor’s decision not to challenge aspects of the King’s Bench petition would make the court more likely to grant a petition. However, Nigro, who also sat on the Philadelphia Court of Common Pleas and said he probably handled 1,500 violation of parole cases, added that trial judges are tasked with striking a balance.

“You have to give the judges latitude in how they handle the cases,” he said.

Both Nigro and Castille agreed that timing is an important factor in granting a King’s Bench petition.

“You’re looking for something that needs immediate concern, and something that more likely than not is going to wind up back in front of the high court anyways, therefore you’re addressing it at an early stage of the game,” Nigro said, adding that, during his 10 years on the bench, the court granted only three or four King’s Bench petitions.

Williams’ 60-page brief requesting King’s Bench relief cited articles from Rolling Stone Magazine, Time Magazine, CNN and NPR, and noted that, during Super Bowl LII in February, the Philadelphia Eagles used one of Williams’ best-known songs, “Dreams and Nightmares,” as their entrance music.

The national spotlight, however, was not the only basis for petition. Williams also cited newly revealed evidence in his case, and relied heavily on references to Philadelphia Court of Common Pleas Judge Genece Brinkley’s handling of the case, saying she often took a prosecutorial stance in the case and at times took an unusually personal interest, given Williams’ fame. The filing also repeatedly said Brinkley delayed making rulings in the case, which meant that Williams needed to bypass the usual appeals process and get relief directly from the Supreme Court.

“The King’s Bench power exists so that this court can ‘conscientiously guard the fairness and probity of the judicial process and the dignity, integrity, and authority of the judicial system, all for the protection of the citizens of this commonwealth,’” the brief said. “The trial judge’s actions would be cause for concern—and would adversely impact the public’s view of the integrity of the judicial system—in any case.”

James “Jim” Sargent is Co-Chairman of Lamb McErlane’s Appellate Advocacy Group and Litigation Department. He has represented major national and multinational manufacturers in litigation and appeals involving class action, product liability, taxation, warranty, fraud, employment and consumer protection law claims.